Though a state human rights division found too long, for purposes of a causal link, the time between an employee’s request for a companion dog as an accommodation and the employer’s discussion with the state’s unemployment division (which led to the denial of unemployment benefits), the agency did not consider a possible link to other protected activities, including the employee’s appeal of the denied accommodation and of her termination for insubordination. Finding the agency’s decision, which found no retaliation, to be incomplete, the South Dakota Supreme Court reversed a lower court’s decision affirming the agency (Riggs v. Bennett County Hospital & Nursing Home, June 27, 2018, Gilbertson, D.).

Companion dog helped control PTSD. The employee worked for the hospital from 2006 through March 2015 as a supply technician and emergency medical technician. She suffers from depression and post-traumatic stress disorder (PTSD) and took a companion dog with her to work to help control her symptoms. Things changed when a new CEO came on board in 2012 and the hospital adopted a more restrictive policy on pets in the workplace. The employee claimed she informally requested to continue bringing in her dog at the time, but the hospital refused.

Hospital finds she performed too well for accommodation. Over two years later, in January 2015, the employee formally requested that she be allowed to bring her dog to work. She submitted a form from her psychiatrist stating she suffered from depression and PTSD and recommending she be allowed to bring her dog to work. A committee consisting of the CEO, the CFO, and the employee’s supervisor denied her request. They explained in a letter that they reviewed her performance, attendance, and medical documentation, and found no change in her performance or duties and no substantial impairment of any major life activity or function.

Employee’s bad reaction. According to the employee’s supervisor she reacted by throwing the hospital’s policy in a drawer, slamming the drawer, cursing, then walking away. Thereafter, her relationship with management became increasingly strained. The CEO claimed the employee would not communicate with her or respond to her directions. At one point, angry over a coworker’s termination, the employee referred to the CEO as a “bitch” and said she hoped a family member of the coworker would beat her up.

On February 26, the employee interrupted a meeting of the Hospital’s board, demanding review of the denial of her request. Because she had not followed proper procedure she was put off until the following meeting. In response, she stomped out, slammed the door, and could be heard yelling as she walked away. On March 2, her supervisor and the CEO tried to talk to her about her behavior but she covered her ears, repeatedly saying “No.” She left a letter for the CEO later that morning, appealing the denial of her request. She was fired for insubordination and failure to follow hospital policy, and she wrote a letter on March 11 appealing that decision as well.

Unemployment benefits denied. The employee applied for unemployment benefits but the hospital provided documentation that led the division of unemployment insurance (DUI) to conclude she was terminated for misconduct. Benefits were denied and she appealed.

The same day that the DUI contacted the hospital, the latter had received notice of the employee’s first discrimination charge with the state’s division of human rights (DHR), alleging the hospital violated the ADA by firing her for asking to bring her dog to work.

In April 2015, an administrative law judge (ALJ) considered the employee’s appeal of the denial of unemployment. The employee’s former supervisor and the CEO both testified at the hearing, after which the ALJ found the employee was terminated because she “knowingly refused to follow [the Hospital’s] grievance policy when she appeared at the Board meeting;” refused to speak to the CEO and supervisor; and “deliberately slammed doors to show anger and disrespect toward her supervisors.”

DHR findings on discrimination, retaliation. In July 2015, the DHR found probable cause to believe the employee’s discrimination claim. She also filed a second charge claiming the hospital opposed her unemployment claim in retaliation for her protected activity but the DHR did not find probable cause on that issue. She appealed that decision to circuit court, which affirmed.

High court finds DHR analysis incomplete. The employee appealed to the state’s highest court, claiming the DHR erred in finding there was not probable cause to believe the hospital’s opposition to her claim for unemployment benefits was retaliatory. Reversing the circuit court’s affirmance, but not reversing the DHR’s conclusion, the state high court found the DHR’s analysis incomplete.

The DHR had concluded that the employee failed to establish a causal link between her January 13, 2015 request for accommodation and the hospital’s March 18 communications with the unemployment agency. The court had relied on cases holding that a time interval of two months or more is too long to establish causation. However, it appeared that the DHR failed to consider two other protected activities—the employee’s March 2 letter appealing the denial of her accommodation and her March 11 letter asking the hospital to reconsider her termination.

Furthermore, the DHR’s decision indicated the hospital had a legitimate reason for terminating the employee (her insubordination), but the DHR did not indicate whether there was evidence of pretext. Because the DHR’s decision was incomplete, the court’s affirmance was premature.

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